Procedural Fairness and Substantive Justice in Disciplinary Hearings

Posted 16 October 2025 Written by Acts Online
Category Labour

Brought to you by SA Legal Academy: In terms of the Labour Relations Act, No. 66 of 1995, disciplinary hearings must adhere to the principles of procedural and substantive fairness as set out in Schedule 8: Code of Good Practice: Dismissal.

The primary objective of a disciplinary hearing under the Labour Relations Act, No. 66 of 1995 is corrective rather than purely punitive. South African jurisprudence, including Avril Elizabeth Holmes and Nitro Fosker, establishes that the core requirement is for allegations to be put to the employee with a fair opportunity to respond. While paper-based processes are permissible for mass misconduct, formal hearings are generally preferred to ensure direct engagement and focused responses.

Roles and Procedural Conduct

Schedule 8 of the Labour Relations Act, No. 66 of 1995 and subsequent case law define the roles within a hearing to ensure impartiality. The Chairperson must be a neutral decision-maker. While Rope Construction Company v CCMA clarifies that “institutional bias” — where an internal manager knows the employee — is acceptable, the chairperson must act without actual partiality. The Initiator represents the employer and bears the burden of proof on a balance of probabilities.

The procedural requirements for a fair hearing include:

  • Preparation of Evidence: The initiator must prepare an indexed and paginated document bundle, including the employment contract, relevant policies, and evidence such as emails, CCTV footage, or witness statements.
  • Right to Representation: In accordance with the Code of Good Practice, employees are entitled to representation by a fellow employee or a trade union official.
  • Witness Testimony: Witnesses may be called by either party and must be prepared to undergo cross-examination to test the consistency of their accounts.

Findings and Sanctions

Once evidence is presented, the chairperson must determine guilt based on the balance of probabilities — whether it is more likely than not that the employee committed the misconduct. If a finding of guilt is made, a separate inquiry into the appropriate sanction must occur, where the chairperson invites arguments on mitigating and aggravating factors.

The ultimate test for dismissal is whether the misconduct is so serious that it makes the continued employment relationship intolerable. While the Code of Good Practice generally discourages dismissal for a first offense, it is justified in cases of gross misconduct, such as theft, assault, or gross insubordination, where the trust relationship is fundamentally broken.

What this means for you, your business, or your clients

  • For yourself: If acting as a chairperson, you must maintain strict impartiality and ensure the hearing is a genuine inquiry rather than a procedural formality to avoid personal professional liability or reputational damage.
  • For your business: Ensure that all disciplinary initiators are trained to compile indexed, paginated evidence bundles and that your internal policies explicitly align with Schedule 8 of the Labour Relations Act, No. 66 of 1995 to mitigate CCMA risk.
  • For your clients: Advise clients that the “balance of probabilities” standard requires meticulous preparation of witnesses and documentation, as the CCMA will scrutinize both the substantive reason for dismissal and the procedural fairness of the internal hearing.

Originally published at https://legalacademy.co.za/news/read/navigating-disciplinary-hearings-a-complete-guide-to-fair-process-and-just-outcomes

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